Friday, 5 June 2015

Understanding Burundi’s turmoil Is it a constitutional crisis or political and economic issues?

Burundi’s current deadlock, on its face, hinges on the president’s staunch determination to run for another presidential term, after ten years in office. Supporters of the president’s new bid for the top job are convinced that The Republic of Burundi 2005 Constitution does not bar the president from running for another term. On the other hand, opposition leaders argue that the spirit and letter of the Arusha Agreement - read together with what opposition leaders call vague presidential terms limit in the constitution - bars the president from running for another term.

Article 96 of the constitution provides that “the president of the republic is elected by universal suffrage for a mandate of five years renewable one time.” The president has held office for 10 years now. Burundi’s opposition leaders and political activists insist that the president is ineligible for another term. The president and his supporters contend that the president has been in office for 10 years. However, the first term he served (five years) was under “Title XV: Of the Particular Provisions for the First Post-Transitional Period” of the 2005 constitution created. Therefore, the president argues, the first five years he served under Title XV do not count for purpose of Article 96.

Burundi’s Arusha Agreement adopted five protocols. The pertinent protocol, for purposes of presidential terms limit, is Democracy and Good Governance (Protocol 11). Article 7 (1) (a) of the Protocol provides that: “the [subsequent] Constitution shall provide that, save for the first election of a president, the president … shall be elected by direct universal suffrage …” Article 7 (1) (c) prescribes that the National Assembly would elect the first post-transition president through Article 20 (10) procedure. Article 7 (3) prescribes that the constitution of Burundi shall provide that the president is elected for a term of five years renewable only once. The framers for Article 96 of Burundi’s 2005 constitution adopted Articles 7(1) (a) and 7 (3) of the Arusha Agreement without adopting Article 7(1) (c). However, Article 302 of Burundi’s 2005 constitution provides that “Exceptionally, the first President of the Republic of the post-transition period is elected by the [elected] National Assembly and the elected Senate meeting in Congress; with a majority of two-thirds of the members … The president elected for the first post-transition period may not dissolve the Parliament”.

Appreciation of the root cause of the current crisis in Burundi probably requires addressing issues such as: whether or not the Arusha Agreement is or is not a legal instrument in Burundi. It’s paramount to determine whether or not a set of moral or social principles that inspired the framers of a constitution can be used to alter the letter of the same constitution. Whether or not Arusha Agreement was an ordinary agreement/contract between the parties that terminated by its terms ought to be ascertained. It is imperative to determine whether or not Article 302 is an exception to, or complements, Article 96 of Burundi’s 2005 constitution.

CONSTITUTIONAL COURT’S TAKE

The Constitutional Court of Burundi ruled that Burundi’s constitution does not bar the current president from standing for another term, which would be his last term. In their ruling, the Justices of Constitutional Court reasoned that “to understand the spirit of the constitution, it is useful to first understand the document which mostly inspired the drafters of the 2005 Constitution.” Burundi’s Constitutional Court Justices argued that Arusha Agreement is a genuine, unavoidable, inspiring and indispensable document. In effect, the Constitutional Court argued, the Arusha Agreement, is Burundi’s 2005 constitution bedrock. The Justices did not present details of their legal reasoning.

However, the Justices’ conclusion about the status and role of the Arusha Agreement in Burundi post-conflict law is revealing. The Arusha Agreement was meant for a specific purpose; to establish and enforce principles and rules that would help Burundians to bring an end to their protracted ethnic civil war and build institutions for sustainable peace, security and development. It appears the Justices were rightly convinced that although the Arusha Agreement inspired the framers of the constitution, like any other landmark event and/or agreement in Burundi’s history, the black and white letter of Burundi’s constitution prevails. The justices appear to agree that Title XV of the 2005 Burundi constitution created a special transitional presidency which the framers of the constitution, clearly, did not intend to count for purposes of Article 96 terms limit. I concur.

ARUSHA AGREEMENT WAS AN ORDINARY AGREEMENT, NOT A TREATY

The Arusha Agreement was a multilateral agreement, not a treaty under the Vienna Convention on Treaties. The Arusha agreement never became, and was not meant to be, a legal instrument. There was an offer, acceptance, consideration and there were no defenses for any party against the Arusha Agreement. There were specific things each party had to perform within a specific time-frame. To this effect, Protocol V, Article 3 (1) created the Implementation Monitoring Committee to: “(a) Follow up, monitor, supervise, coordinate and ensure the effective implementation of all the provisions of the agreement; (b) Ensure that the implementation timetable is respected; (c) Ensure the accurate interpretation of the agreement; (d) Reconcile points of view […] (f) Give guidance to and coordinate the activities of all commissions and sub-commissions set up … for the purpose of implementing the agreement, (g) Assist and support the transitional government in its diplomatic mobilization of financial, material, technical and human resources required for the implementation of the Agreement …”

On August 8 and 9, 2005, the Implementation Monitoring Committee – in conformity with Protocol V of the Arusha Agreement - held its last meeting. The committee reported to the Secretary General that the Agreement had been fully implemented. The UN Secretary General, having been duly briefed that the Arusha Agreement had been successfully implemented, dissolved the committee. In his report - S/2005/586 - September 14 2005, the UN Secretary General reported to the United Nations Security Council that the Arusha Agreement had been implemented in toto. Therefore, the Arusha Agreement, like any other ordinary agreement/contract, terminated naturally by its termination clause. When an agreement/contract terminates by its own terms, the parties are discharged. An agreement that terminated cannot be revived without new negotiations, which would require new offer, acceptance, consideration and absence of defenses.

I respectfully submit that it is erroneous to evoke the terms of the Arusha Agreement after its natural termination. The spirit of the agreement might be morally binding for ages. However, governments enforce written laws, not morality. It follows while the Burundian government must enforce the law, including the 2005 constitution, the Burundian government may reasonably not be expected to enforce moral principles (including the spirit of the Arusha Agreement).

Burundi’s Constitutional Court rightly observed that the Arusha Agreement remains a living inspiration for Burundians - of all ages - because it was the cornerstone for ending the bloody protracted ethnic war. Jurists - all schools of thought; historical, philosophical and analytical - agree that specific events, life experience or realities inspire each statute or law. However, the events, life experience or realities that inspire a given statute do not, by themselves, become law.

It is a settled statutory and/or constitutional interpretation principle that in order to understand the intended meaning of an ambiguous or otherwise unclear term or provision of the law, it’s imperative to understand what the framers of that statute or constitution intended. One of the many ways to discover the framers’ intention is to appreciate the context or the environment that prevailed at the time the legislation was written. Statutory/constitutional interpretation is different from repealing or amending the law in issue. Where the law is clear, as it is the case with Burundi’s constitution on presidential terms, reading the black and white law, not interpretation, is the proper course of action.

The Arusha Agreement is one of the various external and internal environments that inspired the framers of the 2005 Burundi constitution. Burundi’s 2005 constitution ushered in a new, independent and sustainable legal order that in its written form cannot be invalidated by a set of principles or problems the external and internal environments dictated. Which is why Burundi’s 2005 constitution preamble ends with a conspicuously captioned statement: the constitution is the fundamental law of the Republic of Burundi.

The 2005 Burundi constitution did not adopt any provision of, or in its entirety, the Arusha Agreement:
Burundi’s 2005 constitution mentions the Arusha Agreement, probably once, in its preamble: “Reaffirming our faith in the ideal of peace, of reconciliation and national unity in accordance with the Agreement of Arusha …” This provision in Burundi’s constitution is instructive. First, the framers of Burundi’s 2005 constitution are categorical; the Agreement is a set of ideals of a moral nature not law. Second, it was not the framers’ intention to adopt the Arusha “ideals” by mentioning the Agreement in the preamble. It’s a legal principle, of general application, that mentioning a document or an event in a statute or constitution, by itself, is insufficient to prove that the document or event thereby mentioned is a component of the statute or constitution.

Article 19 of Burundi’s 2005 constitution enumerates specific treaties that are a part of the constitution. The Arusha Agreement was not a treaty. Therefore Burundi’s 2005 constitution does not enumerate the Arusha Agreement among the treaties that are an integral part of the constitution.

ARTICLES 96 AND 302 ARE NOT INCONSISTENT PROVISIONS

Burundi’s 2005 constitution creates a unique period called the “first post-transitional” under Title XV of the constitution. Title XV wording is clear; it reads: “Title XV: of the particular provisions for the first post-transitional period”. Title XV set particular procedures for election of the president of this unique period. Title XV took away some vital powers of the president during the first post-transitional government. Title XV procedures and presidential terms are of no significance to Article 96 standards because each part of the 2005 constitution is meant for a different presidential epoch.

Title XV Article 302 of Burundi’s constitution provides that “Exceptionally, the first President of the Republic of the post-transition period is elected by the [elected] National Assembly and the elected Senate meeting in Congress …The president elected for the first post-transition period may not dissolve the Parliament.” The core powers of the president in the section “Executive Powers” did not exist in Title XV era. By its letter and spirit, Title XV created a special category of presidency, which was not intended to count for purposes of Article 96.

The term “exceptionally” – which opens Article 302 - does not create an exception to Article 96. The term “exceptionally” under Article 302, as the wording of Title XV suggests, refers to the exceptional epoch (the first post-transition period) and an exceptional procedure for the election of the president Title XV created. The wording of Title XV of Burundi’s 2005 constitution is clearly meant to create a distinct and separate constitutional epoch called “the first post-transitional period” which is outside the scope of Article 96 president terms limit.

Save for the clear wording of Title XV, particularly Article 302, the framers of Burundi’s 2005 constitution could not have intended that Article 302 to “amend” and/or invalidate Article 96 of the same constitution. In effect, Title XV provisions became obsolete as soon as the first post transitional period ended. Seeking to apply Title XV provisions, beyond it’s intended period, amounts to applying a dead law. Consequently, understanding the meaning of Articles 96 and 302 is not a constitutional interpretation issue; it is about reading the black and white letter of the 2005 constitution.

AN IMIGINARY CONSTITUTIONAL CRISIS

It is odd to believe that an agreement - which terminated - can be revived without new negotiations. It is inconsistent with logic and common sense for some members of society to believe that a written law can be modified or abrogated by the “spirit” or trend that is believed to have inspired the framers of the law/constitution. Many countries that emerge from protracted armed conflicts sign similar agreements. The standard procedure is that the agreement is enforceable during the transitional period the parties agreed to. No such country has ever been asked to implement its peace agreement beyond the transitional period. It is suspicious and illogical that Burundians should be expected to implement a transitional period agreement well after the transitional period.

Burundi is confronted with deeper political and economic problems, domestically and internationally. Domestically, the ruling party is excessively strong (in terms of resources and membership) in comparison with all the opposition political parties. In the most fair and free elections, the possibility that Burundi’s opposition parties will win an election is minimal. Burundi’s opposition political parties are confronted with a political monster, the ruling party. Outside government, there are very few chances for politicians to live decently in Burundi because of extreme poverty and mind set. Political tension in such environment is inevitable. The country’s economic base is too narrow yet Burundi’s fertility rate is all the way through the roof for a tiny country with an impoverished population. This opens a floodgate of all social evils which makes Burundi an active volcano that could erupt anytime for any reason; real or imaginary.

Internationally, Burundi is a favorable gateway into the Democratic Republic of Congo’s (DRC) vast and valuable natural resources. The booming illegal business in DRC has attracted first class multinational companies into that region. Each of these multinational companies wants to influence politics and politicians in Burundi for “favors”. Burundi has 6% of world’s unexploited nickel deposits. A firm that is affiliated to Russia recently “won” the tender to mine nickel in Burundi. With the Cold War reactivated, Burundi is probably a new Cold War battle ground, US government declared position notwithstanding. Burundi is up for grabs in the balance of power system.

It is my submission that the so-called constitutional crisis in Burundi is probably an iceberg of a combination of problems Burundians ought to consider addressing from the roots. I do not believe that anybody should be president for more than 10 years. However, this conviction remains a moral issue until there is some provision of the law that prohibits holding the first office for more than 10 years.

CONCLUSION

The Arusha Agreement was fully implemented. The parties were discharged as per the letter and spirit of Protocol V to the Agreement. The Arusha Agreement was not an indefinite agreement among the parties; it was a transitional agreement meant to bring an end to Burundi's then bloody and protracted ethnic civil war. The Agreement’s moral authority notwithstanding, tying down the sovereign (Burundi) to an agreement that terminated by its own terms would be a historic and legal fallacy. The Burundian government is not reasonably expected to enforce moral dictates, the Arusha Agreement.

Burundi’s 2005 constitution created two distinct and separate epochs; the first post-transitional period (guided by Article XV provisions, including Article 302) and the period thereafter. Seeking to apply Title XV outside its intended epoch is offensive to Burundi’s 2005 constitution. Title XV epoch expired upon the natural end of the first post-transitional government. Therefore, Title XV presidency does not count for purposes of Article 96 of Burundi's constitution.

The alleged constitutional crisis in Burundi is imaginary. The core issues are political, economic and social (domestically and internationally). To the extent that Burundians address the real underlying problems to this imaginary constitutional crisis, realistically, Burundians will enjoy sustainable peace.

* Charles KM Kambanda, PhD, is an attorney and counsel at law in,New York, United States of America.